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| Catherine Mayo v. Lumbermens Mutual Casualty Co.
02S01-9807-CH-00076
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. On or about August 24, 1993, the plaintiff, Catherine Mayo, was engaged in her regular employment duties as manager for Pizza Hut, when she suffered total permanent disabling injuries. An armed robber inflicted a massive shotgun blast to the plaintiff's entire abdomen. On August 11, 1997, the plaintiff filed a Petition for Approval of Final and Lump Sum Settlement under the Workers' Compensation Law. The trial court entered an order approving the final and cash lump sum settlement, awarding total permanent disability benefits at the maximum rate of recovery through age 65 pursuant to Tenn. Code Ann. _ 5-6-27, and lifetime future medical expenses. However, judgment was reserved for a later determination by the trial court on the issue of the medical provision of a heated hydrotherapy pool to be installed at the plaintiff's residence. Prior to May 11, 1998, the plaintiff submitted to the trial court medical reports of two physicians in support of her request for an in-home hydrotherapy pool. On May 11, 1998, the trial court considered the merits of plaintiff's motion. On June 29, 1998, the trial court entered an order denying the request for the medical apparatus, more specifically described as the in-ground heated hydrotherapy pool. Since the plaintiff is making a most unusual request that the defendant install an in- ground hydrotherapy pool at her residence as a medical apparatus that is medically necessary, it is beneficial to set forth the underlying facts of this request. At the time of this unfortunate event, the plaintiff, age 47, was a resident of Jackson, Tennessee, but now resides in Buffalo, New York, where she has family support. The shotgun blast injured the plaintiff's chest, solar plexus, abdomen, abdominal wall, and side. Dr. Joseph Spychalski, the treating physician, found that the plaintiff sustained a complete obliteration of the anterior abdominal musculature, and that, as a consequence, she lacks the ability to efficiently sit, transfer, ambulate, bend, or lift. The plaintiff will require lifelong physical therapy to maintain her back muscles and range of motion. Due to the shotgun blast, the 2
Authoring Judge: L. Terry Lafferty, Senior Judge
Originating Judge:Hon. Joe C. Morris, Chancellor |
Madison County | Workers Compensation Panel | 05/28/99 | |
| James Alford v. Bruce Hardwood Floors
02S01-9808-CH-00083
Authoring Judge: J. Steven Stafford, Special Judge
Originating Judge:Hon. Joe C. Morris, |
Madison County | Workers Compensation Panel | 05/28/99 | |
| David A. Roettger v. Metro Government of Nashville & Davidson County, et al
01S01-9805-CH-00089
Authoring Judge: Per Curiam
Originating Judge:Hon. Carol L. Mccoy |
Davidson County | Workers Compensation Panel | 05/27/99 | |
| Cox v. Hartford Accident
03S01-9706-CH-00063
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. After conducting two separate hearings on this case, the trial court found that the plaintiff was totally and permanently disabled. The trial court further held that the insurance carrier would be liable for 75 percent of the plaintiff's disability and the Second Injury Fund would be liable for 25 percent of the plaintiff's disability. The Second Injury Fund presents the following issues for our review: I. Whether obesity is a compensable preexisting permanent physical disability to warrant recovery from the Second Injury Fund under Tenn. Code Ann. _ 5-6-28(a). II. Whether the trial [court] erred in holding the Fund liable for 25% of the award. We reverse the judgment of the trial court holding the Second Injury Fund liable and dismiss the Second Injury Fund from this case. BACKGROUND ON THE FIRST HEARING At the time of the first hearing on June 14, 1994, the plaintiff was 33 years of age, stood over six feet tall, and weighed close to 4 pounds. He testified that most of his family is overweight and that he has always been a large person. The plaintiff's wife testified that her husband has lost some weight in the past but that he has always been heavy. After graduating from high school, the plaintiff's employment history included working as a small engine repairman, heavy equipment operator, carpenter, factory worker, meat processor, sewing machine operator, and tire builder. The plaintiff eventually returned to school and obtained an associate's degree in accounting from Draughon's College. Draughon's College placed the plaintiff with Monday Realty, where he worked over four years as a bookkeeper three days a week and as a maintenance worker two days a week. When the plaintiff was hired by Monday Realty, he weighed approximately 31 pounds. He testified that he had some normal limitations due to his weight and that his employer made accommodations for him in that respect. For example, the plaintiff did not have to do any roofing work or crawl under houses. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Billy Joe White, |
Knox County | Workers Compensation Panel | 05/26/99 | |
| Carden v. Roane Co.
03S01-9712-CH-00151
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff was injured in July 1993 while driving a truck during the course and within the scope of his job. The occurrence of the accident is not questioned; neither does the defendant question that the plaintiff suffered a back injury as a result of the accident. The plaintiff continued his employment with intermittent medical treatment for his back complaints. On September 1, 1995, at his residence, he stooped to pick up an object and suffered another onset of pain. The complaint was filed November 2, 1995, alleging the occurrence of the traffic accident (as a result of which periodic payments of compensation were made to the plaintiff through November 15, 1995), and subsequent physical impairment. The thrust of the defense is directed to the incident of September 3, 1995, when the plaintiff allegedly suffered the non-job-related accident at home, from which his present impairment is derived. The Chancellor found a 4 percent impairment, holding that the incident at his residence was not an intervening cause, but was merely a manifestation of problems which began in 1993. The issue is whether the evidence preponderates against the finding of the Chancellor.1 1The appellant states that the Chancellor found that "the injury sustained by the plaintiff while working at home in 1995 was causally related to a work-related injury the plaintiff had suffered two years previously." As observed, the Chancellor referred to the September 1995 event as a non-intervening incident which was merely a natural progression of the plaintiff's back problems. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Frank V. Williams, III, |
Knox County | Workers Compensation Panel | 05/20/99 | |
| Da Vi D A . Roett Ger,
03S01-9801-CV-00011
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The plaintiff alleged that he injured his low back while lifting on February 14, 1996 in a job-related accident. After receiving the testimony by deposition of Dr. David Hague, the trial judge found that the plaintiff's back problems were congenital and not attributable to his employment. The complaint was dismissed and the plaintiff appeals. Our review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The restated issue is whether the preponderance of the evidence supports the finding that the work-related accident did not accelerate or otherwise change the pre-existing spondylolisthesis. Dr. Hague testified that an MRI scan revealed a congenital grade one spondylolisthesis with bilateral pars defects which he treated with epidural blocks and a brace. He "presumed" that the disc protrusion with nerve root compression was due to the work injury, but was unable to confirm this presumption clinically. The diagnosis of spondylolisthesis was initially made in 1985 when the plaintiff was treated for injuries sustained in an automobile accident. He opined that the plaintiff had an unoperated grade one spondylolisthesis with medically documented injury andmedically documented pain and muscle spasm that would give him a seven percent impairment to the 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. John B. Hagler, |
Knox County | Workers Compensation Panel | 05/03/99 | |
| Randall Clyde Foster v. Carolina Freight Carriers Corp.
02S01-9802-CV-00013
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Plaintiff/Appellee, Randall Clyde Foster, sustained two successive on-the-job back injuries. He was treated for both injuries by Dr. Thomas D. Weems, a neurosurgeon. The first injury occurred on December 13, 1993, when plaintiff suffered a herniation at the L3-4 level of the spine when he lifted the door of a trailer. This action arose from the second injury that occurred on July 13, 1995, when the plaintiff sustained a herniated disc at the L4-5 level while attempting to lift a stand in a trailer. Both injuries required surgery. Dr. Weems opined that the plaintiff was anatomically impaired at 17 percent to the body as a whole after the first injury, but he rated the plaintiff's impairment to the body as a whole as only 16 percent after the second injury. Suit was filed for workers' compensation benefits arising from the first injury on July 1, 1996. The case was settled by the parties and an order approving the workers' compensation settlement was entered in the Circuit Court of Shelby County on October 2, 1996. The order approving the settlement recited that Dr. Weems had fixed the amount of permanent partial impairment to the body as a whole at 17 percent and the settlement was based upon a 36 percent permanent partial disability to the body as a whole, for a total lump sum of $51,259.68. A certified copy of the order approving the settlement is before us. After trial of the instant case, arising from the accident that occurred on July 13, 1995 (the second accident), the trial court entered a judgment awarding the plaintiff a recovery based upon 3 percent permanent partial disability to the body as a whole. The judgment was erroneous in several respects. It recited that the treating physician had rated the plaintiff's permanent anatomical impairment to the body as a whole resulting from the first injury at 16 percent. Actually, Dr. Weems rated the impairment to the body as a whole from the first injury at 17 percent. More importantly, the judgment recited that the plaintiff had been awarded, pursuant to the settlement of the first accident, benefits upon 2
Authoring Judge: F. Lloyd Tatum, Special Judge
Originating Judge:Hon. Robert A. Lanier, Judge |
Shelby County | Workers Compensation Panel | 04/23/99 | |
| Harris v. Sabh-Mor Flo
03S01-9712-CH-00142
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The employee, Geraldine Harris, has appealed from the action of the trial court in dismissing her claim against her employer, Sabh-Mor Flo Industries. Plaintiff sustained a work-related injury during October 1994 to her arm and shoulder. After receiving some treatment, she returned to work at a wage equal to or greater than she had been receiving prior to the accident. In determining her entitlement to permanent disability benefits, the trial court found her return to work was meaningful within the scope of our statute, T.C.A. _ 5-6-241(a)(1), and that since her medical impairment rating was 11%, the award of permanent disability was capped at 2 _ times the medical impairment, which resulted in a 27.5% disability award to the body as a whole. Upon her return to work, she was given another job where she worked for four or five weeks. When this job ended, she was assigned a job classified as a "service agent." This position involved her understanding the basic parts of a water heater in order to handle telephone customer complaints. She was also required to operate a computer. She received several weeks of training and attempted to perform her new duties. The record is quite clear she did not perform satisfactorily. She testified she could not do the work and needed more training and her employer also felt she could not do the work. She testified that after several days attempting to do the work, she was called to the office and was told, "we don't think you are going to make it." She was terminated on April 3, 1997 which was less than two months after the February 13th trial. The present action seeking a reconsideration of the original award of 27.5% disability under T.C.A. _ 5-6-241(a)(2) was instituted on May 2, 1997. At this hearing there was a dispute between the parties as to the exact reason for plaintiff 's discharge. Plaintiff contended she was terminated because she could not perform the duties she was asked to do. Defendant-employer contended she fell asleep on the job and was terminated for refusing to obey a direct order. 2
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. G. Richard Johnson, |
Knox County | Workers Compensation Panel | 04/22/99 | |
| Globe Business Furniture of Tennessee, Inc. v. Gayla Young
01S01-9804-CV-00074
Authoring Judge: Weatherford
Originating Judge:Hon. Thomas Goodall, Jr. |
Sumner County | Workers Compensation Panel | 04/21/99 | |
| David W. Reed v. WaUSAu Insurance Company
01S01-9802-CH-00038
Authoring Judge: Per Curiam
Originating Judge:Hon. Charles Smith |
Wilson County | Workers Compensation Panel | 04/21/99 | |
| Essie M. Butler v. Emerson Motor Co .
02S01-9805-CH-00045
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2). Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The trial court found the plaintiff had failed to show she was entitled to compensation because of an alleged back injury.1 We affirm the judgment of the trial court. The facts in this case are reasonably simple. The plaintiff, age 49, had been working for the defendant for 25 years. Several years prior to 1995 she injured her back at work. This injury is more historical than significant in the case before us. In January 1995, the plaintiff was working at a lathe, putting machine parts on the lathe and turning them. She began to experience pain in her back. She testified this was caused by having to twist her body side to side or back and forth in doing the work. Ultimately, the plaintiff was seen by several doctors and had several diagnostic tests and various treatments done. The most significant treatment was done by Dr. Dan Spengler, an orthopedic surgeon, who diagnosed the plaintiff as having instability of motion at the L4-5 section of her spine with some pinching of the nerve. Dr. Spengler was of the opinion that the cause of this problem was a degenerative process in a person of the plaintiff's age. He was of the opinion the plaintiff's work did not cause the problem. 1 The plaintiff also sued for carpal tunnel syndrome and was found to be entitled to compensation. That matter is not raised in this appeal. 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. George E. Ellis, |
Gibson County | Workers Compensation Panel | 04/14/99 | |
| Bechtel Construciton Co. v. Campbell
03S01-9712-CV-00145
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. The issue in this case is whether the evidence preponderates against the finding of the trial court that the employee did not suffer a compensable injury or an aggravation thereof within the purview of the workers' compensation laws. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2);Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The employee initially alleged that she suffered a job-related accident while employed as an apprentice pipe fitter at the TVA Sequoyah Nuclear Plant in Hamilton County on May 14, 1996. This theory was essentially abandoned after the proof was closed, and the employee was permitted to amend her counter- complaint by alleging a gradual injury involving cervical and shoulder pain. Ms. Campbell was initially employed in August, 1995. She was laid off in May, 1996, but was on furlough for two months during her brief employment. She testified that on May 14, 1996, while relaxing during a lunch break, pain developed in her left forearm. Three days later she was laid off due to a reduction in force, and applied for and received unemployment benefits, after certifying to her union that she was able to work. On June 6, 1996, she was injured in an automobile accident, and reported to the treating chiropractor that she had neck and shoulder complaints, not job-related. She did not pursue further chiropractic treatment because "it would mess up her compensation claim." 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. L. Marie Williams, |
Knox County | Workers Compensation Panel | 04/05/99 | |
| Denise Stavropoulos v. Saturn Corporation
01S01-9711-CV-00251
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Denise Stavropoulos (employee), suffered bilateral hand numbness and later severe neck pain with no identifiable precipitating event. Massive cervical disc herniation was diagnosed and corrective surgery was performed. The trial court found the condition to be work-related and awarded 9 percent permanent partial vocational disability, in lump sum, and temporary total disability benefits, set off by group disability benefits which had been paid as of the date of trial. Employee is 42 years old and has a high school education. After 14 years' work as a sewing machine operator and press operator for General Motors in Michigan, she began working for Saturn Corporation (employer) in 1992 as an Inventory Management team member. Her duties included operating a forklift truck with an overhead computer screen and reaching up to the computer to enter data about the work that was being performed. She had been treated by a therapeutic masseuse on two occasions in November 1995, for tension, headaches, and mild thoracic stiffness. On November 15, 1995, the masseuse found tight levator, rhomboid and supraspinous muscles, i.e., the muscles surrounding the shoulder blades and cervical spine. She performed an hour-long "myofacial release technique" to the shoulder blades and cervical spine, with good results.1 The employee first noticed numbness in her hands during the second week of July, 1996, and does not recall any precipitating event. She testified that the 1 Performed to treat inflammation where the muscle is attached to the bone. The Sloane-Dorland Annotated Medical-Legal Dictionary, West Publishing, 1987. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Jim T. Hamilton, |
Maury County | Workers Compensation Panel | 04/05/99 | |
| Metier v. Dico
03S01-9710-CV-00122
Authoring Judge: John S. Mclellan, III
Originating Judge:Hon. James B. Scott, Jr., Chancellor |
Knox County | Workers Compensation Panel | 03/29/99 | |
| Brewer v. Liberty Mutual -
03S01-9801-CH-00010
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Billy Joe White, |
Knox County | Workers Compensation Panel | 03/29/99 | |
| Michael Bingham v. Kimberly-Clark, Inc.
02S01-9804-CV-00040
Authoring Judge: F. Lloyd Tatum, Special Judge
Originating Judge:Hon. James F. Russell, Judge |
Shelby County | Workers Compensation Panel | 03/29/99 | |
| Hon. Frank v. Williams, Iii,
02S01-9802-CH-00019
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Dewey C. Whitenton, |
Lauderdale County | Workers Compensation Panel | 03/25/99 | |
| Intermodal Cartage, Inc. and Cigna Property & Casualty Co.
01S01-9803-CV-00051
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. Hamilton Gayden |
Davidson County | Workers Compensation Panel | 03/25/99 | |
| Seiber v. Methodist Med
03S01-9801-CV-00006
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of theSupreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. FACTS: Thelma Seiber (plaintiff), sustained a compensable work-related low back injury on March 28, 1996. She was treated by Dr. Ann Carter, a physician who was authorized by the employer. Dr. Carter referred plaintiff to Dr. Eugenio Vargas, also an authorized physician, who performed two surgeries and sent her back to Dr. Carter for follow-up care. On July 2, 1997, the Court approved the parties' settlement of plaintiff's claim which, among other benefits, provided for continuing medical care by authorized physicians. On July 23, 1997, the employer informed plaintiff's counsel by letter, as pertinent: ". . . As you are aware, Dr. Carter was Mrs. Seiber's family physician even before she sustained an injury at the hospital and Dr. Carter was permitted to continue as the authorized primary care physician in this matter. Mrs. Seiber also continues to see Dr. Carter for her other health problems, and sometimes it is difficult to know exactly what treatment is related to the injury of March 27, 1996, and her other physical and psychological problems. For the above reasons, as well as other reasons of which you are aware,1 I am hereby notifying you on behalf of Methodist Medical Center that Dr. Carter will no longer be recognized as the authorized treating physician for any future medical treatment necessitated by Mrs. Seiber's injury of March 27, 1996. Since the hospital is still responsible for future medical treatment necessitated by her injury, I am giving you the following primary care physicians from which to choose for further medical treatment necessary . . ." Plaintiff's first post-settlement doctor's appointment was scheduled for August 29, 1997. On August 18, 1997, the employer's representative telephoned the employee, told her that Dr. Carter was no longer an authorized 1At oral argument, the employer alluded to another reason for changing physicians but that there were no facts in the record about that reason. 2
Authoring Judge: William H. Inman, Senior Judge
Originating Judge:Hon. James B. Scott, Jr., |
Knox County | Workers Compensation Panel | 03/25/99 | |
| Charlotte L. Townsend v. State of Tennessee
02S01-9807-BC-00069
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Martha Brasfield, |
Knox County | Workers Compensation Panel | 03/25/99 | |
| James R. Simpson v. Livingston Limestone Co., Inc.
01S01-9712-CC-00282
Authoring Judge: Joe C. Loser, Jr., Special Judge
Originating Judge:Hon. John Maddux, |
Overton County | Workers Compensation Panel | 03/25/99 | |
| Smith v. Georgia Pacific
03S01-9803-CH-00028
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Earl H. Henley, |
Smith County | Workers Compensation Panel | 03/25/99 | |
| Bradley v. Deroyal
03S01-9802-CH-00018
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: Roger E. Thayer, Special Judge
Originating Judge:Hon. Frederick Mcdonald, |
Bradley County | Workers Compensation Panel | 03/24/99 | |
| Thomas v. Testerman
03S01-9807-CH-00080
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law.
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Frederick D. Mcdonald, |
Knox County | Workers Compensation Panel | 03/23/99 | |
| Brogdon v. Chattanooga General Ser.
03S01-9803-CV-00021
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel of the Supreme Court in accordance with Tenn. Code Ann. _ 5-6-225(e)(3) for hearing and reporting to the Supreme Court of findings of fact and conclusions of law. Review of the findings of fact made by the trial court is de novo upon the record of the trial court, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. _ 5-6-225(e)(2); Stone v. City of McMinnville, 896 S.W.2d 548, 55 (Tenn. 1995). The application of this standard requires this Court to weigh in more depth the factual findings and conclusions of the trial court in a workers' compensation case. See Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452, 456 (Tenn. 1988). The defendant appeals from an order of the trial judge entered on the 26th day of January 1998 which set aside a portion of a final judgment in an approved settlement of a compensation claim made by the plaintiff against the defendant. The approved settlement and judgment thereon was entered on October 11, 1996, and among the provisions therein was the approval of medical care for a period of one year. The care was to be provided by Dr. Lester F. Littell, an orthopedic surgeon. In addition, a fund of $2,1.4 was established for future medical care. On October 6, 1997, the plaintiff filed a motion to set aside or modify the judgment, asking that he be allowed to be seen by another or other doctors to determine if he should have back surgery. No evidence was introduced in the hearing on the motion, although there were medical records from Dr. Littell and Dr. George Seiters, also an orthopedic surgeon. Both of these physicians were of the opinion the plaintiff did not require surgery. In a sworn affidavit, the plaintiff alleged he was not allowed by the defendant to obtain a second opinion on whether he needed surgery. This statement was false. The insurance carrier as well approved an examination by Dr. Seiters, and Dr. Littell's notes reflect he referred the plaintiff to Dr. Seiters. We are somewhat hampered in this case by the fact that counsel for the plaintiff withdrew as counsel in accordance with the rule allowing withdrawal. The 2
Authoring Judge: John K. Byers, Senior Judge
Originating Judge:Hon. Robert M. Summitt, |
Knox County | Workers Compensation Panel | 03/23/99 |